The
most sensible reconciliation of the tension between religious liberty
and public accommodations law, in the recent cases involving merchants
with religious objections to same-sex marriage, would permit business
owners to present their views to the world, but forbid them either to
threaten to discriminate or to treat any individual customer worse than
others. Even if such businesses have no statutory right to refuse to
facilitate ceremonies they regard as immoral, they are unlikely to be
asked to participate in those ceremonies. This solution may, however,
be forbidden by the law of hostile environment harassment. That raises a
severe free speech problem, but the Supreme Court has left the
pertinent doctrine in a state of confusion. I offer a better account of
free speech law, one that depends on some neglected free speech values –
the protection of religious disagreement, the promotion of mutual
transparency among persons, and the positive valuation of ethical
confrontation. I conclude that, under familiar rules of constitutional
avoidance, state antidiscrimination laws should be construed to allow
this kind of speech.

I make this argument in an article forthcoming in the Northwestern University Law Review, available here.